A San Marcos family is awaiting a court decision on whether they will be allowed to remove a “Z” from the exterior of their historic home after discovering its affiliation with the Ku Klux Klan.

Rolf Straubhaar and Kristy Money have lived with the “Z” adorning the balcony of their San Marcos home for seven years.

Upon purchasing their home in the Burleson Historic District, Straubhaar and Money learned that the Z was installed by its previous owners, the Zimmermans. It was not until Money started doing her own research that they discovered former Mayor Frank Zimmerman’s ties to the Ku Klux Klan.

“I was pretty shocked to hear about not just Frank Zimmerman’s involvement in the Klan, but how all of his friends were basically,” Money said. “There’s such a strong presence of the Klan in San Marcos, I had no idea.”

Straubhaar and Money want their home to be a representation of their values, so they began the long process to try to get permission to remove the “Z” in March of 2023. 

“It does feel tricky to be in a situation where you want your space to feel like a representation of you,” Straubhaar said. “Not being able to remove that, has felt frustrating to say the least.”

The application to the San Marcos Historic Preservation Commission (HPC) was denied in May of 2023 out of a duty to “respect the past,” citing the 18-square-inch fixture as a defining feature of the house.

Straubhaar questions the weight of the appointed committee members’ opinions regarding what constitutes a critical feature of the home compared to his own opinions. 

 

The HPC’s Authority

 

The City of San Marcos (COSM) said the primary role of the HPC is, “to review requests to modify exterior features of buildings located within designated historic districts or historic landmarks to ensure that the modifications are consistent with historic design guidelines intended to preserve the historic character of the district or the landmark.” This means that even changes like adding fencing for child safety have to go through the long, bureaucratic, and cost-prohibitive process. 

Straubhaar and Money’s lawyer Christian Townsend explained that the HPC has authority over the front 50% of a persons’ property – basically anything that faces a street. 

“The HPC has authority to regulate any change to the aesthetic,” Townsend said. “They have to approve before you can make that change. And so it’s really not about actually protecting history. It’s about protecting this sort of aesthetic of history. There’s already mechanisms under Texas State law for cities to protect historic buildings by declaring it historic in exchange for tax benefits.” 

Straubhaar said that when they moved into the historic district, into a home without a historic designation, they were told that the HPC was an advisory body that would ensure changes to the homes would fit the historic nature of the neighborhood. 

“That has value to us,” Straubhaar said. “We love the way our neighborhood looks. What troubles us and what led us to move forward with this [lawsuit] is when it’s not just an advising group that can help you preserve your property in the way that reflects its history, but when it [HPC] becomes a de facto HOA [home owners’ association] for people who don’t like how you’re using your property and that it has enforcement mechanisms to force you to keep things that you don’t want or to that don’t reflect your values, like the Z. And that’s what we would like to see change.”

 

Fighting City Hall in the Courts

 

After their application to the HPC was denied, the couple took the help of the Texas Public Policy Foundation (TPPF) to appeal the case in a district court. 

TPPF provides free legal help to people whose rights are violated by the government, Townsend said. “This seemed like the sort of arbitrary government power that is really hurting a family that’s just trying to live their life and use their property in ways that aren’t hurting anybody.”

The COSM then sought to dismiss the case, stating that it could have been administratively appealed locally at the city’s Board of Adjustments.

“The owners in this case chose not to exercise their opportunity to appeal the decision of the HPC to the board of adjustments before taking this matter to court,” a COSM representative said. “Local officials, therefore, did not have an opportunity to consider the owners’ concerns on appeal, some of which were never raised at the initial hearing.” 

The representative also shared that the appealing party must establish that there was not enough evidence to support the HPC’s decision at the time.

Townsend noted that it was too late to appeal to the Board of Adjustments, so after the district court dismissed it, TPPF submitted the case to the Fifth Circuit Court of Appeals.

“All we’re asking the court to do is apply the precedent that the Supreme Court has been applying for the last 50 years,” Townsend said. 

The precedent came from the 1982 U.S. Supreme Court case Lorette v. Teleprompter Manhattan CATV Corp., when it was established that the government must provide compensation to property owners for requiring them to keep something on their private property for the benefit of the public. 

While the home is located in a historic district, without a historic designation on the property Straubhaar and Money are not receiving any tax benefits or other compensation from the city for abiding by the HPC’s direction.

“They [HPC] want the aesthetic of this ‘Z’ to remain on their property, but they don’t want to have to pay Christy and Rolf for that public benefit,” Townsend said. “Going back to the 1876 Texas Constitution, cities are only allowed to regulate people’s property when people are causing harm to their neighbors. But this is purely aesthetic.”

It was established in the 1921 case Spann v. City of Dallas at the Texas Supreme Court that the government cannot regulate people’s property purely based on aesthetics. 

The ruling stated, “It would be tyranny to say to a poor man who happens to own a lot within a residence district … that he could not erect a humble home upon it suited to his means … Under his constitutional rights he could erect such a structure as he pleased, so long as it was not hazardous to others. It might proclaim his poverty … it might stand as a speaking contrast between his financial rank and that of his neighbors. Yet, it would be his ‘castle;’ and the Constitution would shield him in its ownership and in its use.”

 

Waiting on a Ruling

If the appeal is dismissed, Straubhaar and Money will not be able to remove the Z.

If the appeal is granted, the court can not order the COSM to create a compensation mechanism for keeping the Z. COSM would have a couple of options for how to respond to the appeal: They could create a new ordinance that allows for some compensation for keeping the Z on their property, or one that adds some specificity to property modifications based on aesthetics.

TPPF wants the court to apply precedent to stop the allegedly unconstitutional city ordinance that requires residents to get permission from HPC before altering the appearance of their home. 

“If Straubhaar and Money win, then they will be able to remove the Z if they want to or make any other change they want to the appearance of their house without having to go in front of the Historic Preservation Commission,” said Townsend. “Currently the only thing preventing them from removing the Z is the Historic Preservation Commission.”

“It would be great if this ruling could clarify, to what degree do they have the power to insist that things be done a certain way, rather than advise?” Straubhaar said. “We don’t need or even want compensation. We just want to be able to make the changes to our property to fit our values. We have no interest in compensation.”

TPPF believes that a favorable ruling for Rolf and Kristy would set precedent for how the HPC will handle requests from residents asking to modify their properties.

The family is currently waiting for a decision from the court, and potentially for a call for oral arguments. TPPF is expecting to hear back from the court later this year.

In the meantime, Straubhaar and Money are utilizing the experience as a teaching moment for their children. 

“[The kids] are invested in seeing their home be a potential symbol for justice and not a symbol of hate,” Money said. “And honestly, when we talk about the importance of history, we want that to be talked about more, and that’s one of the things that we appreciate about this lawsuit is it’s become an opportunity to talk to more people about some of the parts of local history. A slightly uncomfortable conversation at a barbecue but you know, conversations that we think should happen.”

BY STEPHANIE GATES